Re-filing a claim that was deemed not service connected

[dethnode]

Ok, first let me say, I am sorry for the long winded post, and also if this is not in the proper place.

I served on active duty USAF for 7 years from 2003 to 2010.  Prior to joining, there were no instances of ever having back problems or even a day of back pain.  During my service, I had several documented lower back pain clinic visits.  Most of the time, I was given a exemption from physical training and some Ibuprofen. On three occasions, I was sent to physical therapy and to chiropractic services.  Never were there any advanced imaging tests performed.  After I separated in 2010, I did not file any claims for disability.  I continued to have back problems that I would go see my primary care physician for and would be treated with muscle relaxers and/or steroids.  In 2012, a friend that I kept in touch with from service told me I should go and file a claim, so I did.  I filed for three issues (knee pain, back pain, and shoulder pain) on the advice of my VSO. The knee pain I had before I went in and it was documented before I went in, so I figured that to be a waste of time.  The shoulder pain was just a click in my shoulder that was not really painful and caused no difference in my daily life so I did not see that as relevant. However, the back pain did not start until I joined service, and had become an issue that was more often painful that it was not painful.  So I filed, and went to my C&P and they did an X-ray and ROM test for all three claims.  Several months later I got a letter in the mail (to the wrong name) but with my information, that all three of the claims had been deemed not service connected.  

I was fresh out of college and just starting a new job, with newborn son, and basically running in every direction just to get day to day things accomplished and at the time the back pain while a pain in the butt, was more of a nuisance than anything else. So from that time until last 2015, I have been treated by my PCP approximately 2 or 3 times a year with steroids and muscle relaxers for lower back pain, and have seen a chiropractor on occasion.   In 2015, I had a flare up of back pain, that sent me to my doctor, this was different, it was the same pain but much more intense.  The PCP said it sounded like a herniated disc, but that they would treat it with physical therapy.  I asked "can we please do an MRI to confirm"? His response was that the MRI is an expensive test and that it is better to do the physical therapy and see if it gets better. Well over a 3 month period of physical therapy it did gradually get better but did not return to the same.  Then, 1 month ago, while picking up a pair of shoes, I could not stand back up, every attempt to straighten my lower back was met with excruciating pain.  I was home alone with 3 children, my wife was at work.  My youngest (7 months old at the time) was in his crib crying, and I was stuck on my hands and knees.  I called my wife who came home to help.  But when she attempted to help me stand, my legs were numb (like not there numb), the pain in my lower back when attempting to stand sent me into screams of pain.  We had no choice but to call for an ambulance to take me to the ER.  When they placed me on the stretcher and straightened my lower back, for the first time in my life, I blacked out.  At the ER they finally ordered an MRI, and it was confirmed I had a herniated disc, with several fragments pressing against the nerve root. They referred me to a neurologist and he recommended I let it wait 4 weeks to self heal and then determine if I wanted surgery.  Two weeks in, I called him and said schedule the surgery. I had paid radiating down my right leg.  I was unable to sit, drive, stand, walk.  The only thing I could do was lay on my side with my knees bent 30 degrees.  He performed the surgery and said that things were worse than the initial MRI, he said he did remove several bone fragments from my nerve root, and that I had sever disc degeneration to the point that there is almost no disc left.  He said I am likely looking at fusion in the next 5 to 10 years. 

 

So, now that brings us to present day.  I have called a different VSO and scheduled an appt. I am going to re-file my claim.  Is there any chance of this turning out favorably for me?

[broncovet]

Sure.  Order a copy of your Cfile, and make sure all three Caluza elements are documented:  A) Current diagnosis, b) In service event or aggravation and c) Nexus, or a doctor stating that your current back condition is "at least as likely as not" due to xx event in service.  

If you have all 3 caluza elements, your chances are great.  If you lack any of these documented, you are unlikely to get sc for the condition.  So, check your file and see for yourself.  We dont have access to your file, so we dont know.  

If you do get service connected in the refile, then you should try to get it sc back dated to when you first applied.  Hopefully you have that denial decsiion laying around.  

If evidence of one of the caluza elements was available, but VA did not have a copy for whatever reason, you should be able to reopen due to 38 cfr 3.156.  

[dethnode]

So, the third element (Nexus, or a doctor stating that current back condition is "at least as likely as not" due to xx event in service.  That element is my problem, I have plenty of documentation of lower back pain while in service, but no specific event that lead to the back pain.  So I would assume that meets the second element that there was evidenced aggravation of condition.  But none of my doctors thus far are willing to state that this condition is likely due to aggravation during service.

 

I considered going to one of the doctors that are discussed on this forum like Dr. Bash to get an IMO.  But my appointment with my DAV is for mid July.  I assume I could not get an appointment for an IMO before then, but could probably get an appointment before my C&P.  If I did so, would the IMO being done after my initial appointment with the DAV be a problem.  Also, given the circumstances would you recommend getting an IMO?

[broncovet]

If you lack the nexus, its ok to apply, but just understand you wont be awarded benefits until you get it.  So, for example, if you applied today, got a nexus statement in December, you got a good chance at your effective date being today.  

[broncovet]

This is what irritates Alex Graham and myself about so called Vets advocates or VSO's.  They will let you go along, stringing you along, sometimes for years when you have no nexus.  The Veteran does not know he needs a nexus, but your VSO SHOULD KNOW THIS, and he also should know if you do or do not have one.  

I hate being strung along.  While I did not know what a nexxus was, in 2002, when I did appeal, I cited the audiologist opinion that my hearing loss was "at least as likely as not" due to excessive noise in service.  

I thought that may be important (it was) and I did win the appeal.  Why?  Well I had all 3 Caluza elements.  When you go to shoot, you need a gun, bullets, and experience or practice.  All three of these are needed, and you wont be shooting anything without all 3:  Gun, bullets, shooting skills.  

[dethnode]

I have a follow up for my surgery in a couple of weeks.  When I see my neurologist what should I request from him as far as a nexus statement goes.  Do I just tell him, I need a letter that states that it is at least as likely as not that my current diagnosis is due to aggravation to the lower back during my time of service. And a medical reasoning as to why it's at least as likely?

 

I guess what I am asking here is what exactly is a nexus, and how would i go about getting a neurologist who just saw me for the first time 1 month ago to write a statement connecting current condition to service 7 years ago?

[jbasser]

Get your Doc to fill this out. Rationale will be needed to connect current issues with service. Arthritis is a good point as it will help form a time line.

 

https://www.vba.va.gov/pubs/forms/VBA-21-0960M-14-ARE.pdf

 

Then have the Doc attach an opinion.

You may need a stronger advocate than the DAV. I suggest an accredited agent when the VA denies your request to re open.

J

Edited July 3, 2017 by jbasser